A three-judge federal court Monday denied a Texas Democratic Party motion to throw out a lawsuit challenging its allocation plan for delegates to the Democratic National Convention The court ruled that Section 5 of the federal Voting Rights Act applies to the delegate selection formula for a state party’s political convention (including the “Texas Two-Step,” where both caucus and primary results are used to allocate Delegates to presidential candidates at the Democratic National Convention). That means the Texas Democratic Party would likely have to pre-clear its delegate allocation formula either with the U.S. Department of Justice or a three-judge federal court in Washington DC. In 2008, the formula resulted in President Barack Obama getting a majority of Texas delegates, despite Hillary Clinton winning the statewide primary.
The court stopped short, for technical reasons, of ordering pre-clearance but left no doubt about how it would rule. “Today, we continue to give force to those accomplishments [of the Voting Rights Act] by following clear Supreme Court precedent and ruling that Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c, applies to a political party’s delegate allocation formula for its nominating convention,” wrote Circuit Judge Edward Prado for the panel. “…Indeed, political expediency and the TDP’s stated support for Section 5 might counsel it now to seek preclearance of its delegate allocation rules instead of proceeding further in this litigation.”
The suit was brought by the League of United Latin American Citizens (LULAC) arguing that the current allocation formula dilutes Latino influence. The formula allocates delegates to Senate Districts based on the actual number of votes cast for the Democratic candidates for governor and president in the preceding election. Note that the formula is based on actual votes cast, not share or percentage of the vote. Therefore, Senate Districts with high voter turnout, such as in Austin, were allocated more delegates than those with low voter turnout, such as El Paso.
Federal District Judge Fred Biery signed the majority opinion but wrote his own brief concurring opinion to express his hope that, as the case progresses, appellate courts “would give guidance to lower courts and political parties in situations where party rules are neutral but the failure to vote produces a delegate allocation shortfall to the detriment of groups who choose not to exercise the right protected by the Voting Rights Act.”
The panel consisted of Prado, Biery, and District Judge Xavier Rodriguez. Prado and Rodriguez were appointed by Republican presidents, while Biery was appointed by a Democrat. Once the panel makes a final ruling, any appeal would go directly to the Supreme Court of the United States.
The court did not rule on whether the formula violates the Voting Rights Act, only that it is subject to it. The actual decisions in Section 5 cases are made in Washington DC.
“Today a three-judge Federal District Court ruled on a request for summary judgment by the Texas Democratic Party regarding the technical aspects of delegate selection,” said Texas Democratic Party Chairman Boyd Richie. “While the Court denied summary judgment, it emphasized that they were not finding the Texas Democratic Party’s delegate allocation plan discriminatory. The Texas Democratic Party fully supports all aspects of the Voting Rights Act and works diligently to ensure the participation of all Texans in the electoral process. Our legal counsel is currently reviewing the Court’s opinion in this case to determine their recommendations for further action.”
Republican Party of Texas Chairman Tina Benkiser called on Democrats to drop the two-step formula. “The Texas Democratic Party’s two-step system is anything but democratic,” said Benkiser. “It was built to allow party bosses to make back room deals in the dead of night that can and have overturned the express will of the voters. It was also designed to pit factions of the Democrats’ voters against one another. The TDP claims to support the Voting Rights Act, but their defense of this indefensible system gives the game away: They support their own power to determine electoral outcomes without regard to what the voters of Texas actually want. We applaud LULAC in its efforts to force the Texas Democrats to stop disenfranchising Latino voters.”